## Facts

- Vincent Fiorito was critically injured in an apparent hit-and-run in the Town of Mamaroneck, New York, with no known witnesses, and later died from his injuries.
- Fiorito’s insurer initially denied uninsured-motorist coverage based on a report suggesting the driver had identified himself to an attorney.
- Grace D’Alessio, representing Fiorito’s estate, learned attorney Michael Gilberg may have been contacted by the suspected driver and sought the driver’s identity to bring a civil action.
- D’Alessio petitioned under CPLR 3102(c) for pre-action discovery, seeking depositions of Gilberg and the former police commissioner to identify the driver.
- The trial court ordered Gilberg to appear and disclose the client’s identity, reasoning that client identity was not privileged and that privilege should not shield a person from civil or criminal liability.
- Gilberg appeared but refused to disclose the name, asserting the identity was protected by attorney-client privilege, and appealed.

## Issues

1. Whether an attorney may be compelled, in pre-action discovery, to disclose a client’s identity when revealing the name would effectively disclose a confidential communication about the client’s possible past commission of a crime.
2. Whether the attorney-client privilege applies where the alleged crime is completed, disclosure would expose the client to prosecution, and nondisclosure poses no risk of future criminal acts.

## Decision

- The Appellate Division, Second Department, reversed the order compelling disclosure.
- The court held that, on these facts, the client’s identity was privileged and Gilberg could not be compelled to reveal it.
- The court rejected a case-specific weighing of the privilege against the estate’s need for the information once the elements of the privilege were satisfied.

## Legal Principles

- New York’s attorney-client privilege (statutory) protects confidential communications made for the purpose of obtaining legal advice, even if excluding relevant evidence impairs fact-finding.
- Although a client’s identity is ordinarily not privileged, identity may be privileged when disclosure would, in substance, reveal the client’s confidential communication, motive, or the substance of the consultation.
- Where the suspected wrongdoing is in the past, disclosure would expose the client to possible criminal prosecution, and nondisclosure does not risk future criminal acts, compelling disclosure of identity may be barred because identity and confidential communication are effectively inseparable.
- Courts may not deny the privilege based on the relevance or materiality of the privileged information or on the hardship to the party seeking disclosure.

## Conclusion

The court held that an attorney could not be forced to disclose a client’s identity in pre-action discovery when naming the client would effectively reveal a confidential consultation about a completed hit-and-run and expose the client to prosecution, and it reversed the order compelling the attorney’s testimony on that subject.


D’Alessio v. Gilberg, 205 A.D.2d 8, 617 N.Y.S.2d 484 (App. Div. 2d Dep’t 1994)